Werner, J.
The plaintiff is the owner of about 9,000 acres of forest land in the Adirondack mountains. This tract he inclosed and improved as a park and game preserve, which was brought within the protection of the law by the posting of proper notices. In 1902 the defendants entered upon these premises and denuded of its growth of forest trees a strip of about miles in length and from 3 to 8 feet wide, except for a distance of 1,350 feet where the cutting was from 25 to 35 feet in width. Upon a complaint which alleged these facts and contained averments of further threatened devastation of plaintiff’s preserve by the defendants, the court granted a preliminary injunction restraining
pendente lite
the further commission of similar acts. There was no conflict of evidence as to the principal facts; the real defense being, that in the commission of the alleged trespasses the defendants were agents of the state engaged in the making of a survey under
legislative authority, and that nothing had been done upon the plaintiff’s land that was not essential to the proper performance of the work. At the trial the learned referee gave judgment for the defendants, holding that in the commission of the acts complained of the defendants were agents of the state, which, in the exercise of its police power, had done nothing to invite or justify judicial interference' with its agents. At the Appellate Division this judgment was unanimously affirmed, not upon that ground, but because the legislative enactment., under which the defendants sought to justify their procedure, contained inherent but obscure indications of the state’s purpose to exercise the right of eminent domain, under which the only remedy open to the plaintiff is a resort to the Court of Claims for such damages as he may have suffered. On the present appeal it is sought to sustain the decisions below by discarding both of these divergent theories and justifying the action of the defendants under the state’s general governmental power to establish boundary lines between its political subdivisions. In view of this diversity of opinion I venture to join the symposium of judicial disagreement with a fourth proposition under which I shall endeavor to demonstrate the error of the three preceding conclusions and to establish the plaintiff’s right to maintain the action at bar.
To this end I invite attention to the initial fact that the dispute as to the boundary lines between the counties of Franklin, Hamilton, St. Lawrence and Essex, which is the underlying cause of this controversy, had existed for over a hundred years prior to 1902, so that there was no occasion for emergent action on the part of the state. A controversy of such long standing, even though it involved the jurisdiction of courts, the right of the franchise and the power of taxation, presented no exigency that required the immediate and arbitrary exercise of the police power or the law of overwhelming necessity in the invasion of private rights.
(Am. Print. Works
v. Lawrence, 23 N. J. Law, 590 ;
Matter of
Jacobs, 98 N. Y. 108;
Wynehamer
v. People, 13 N. Y. 401.)
It is to be observed, moreover, that the police power, which is concededly an inherent attribute of sovereignty, should be permitted to override or nullify our constitutional limitations only in cases of the highest public necessity. That governmental power, like every other, is subject to the Constitution, and when it is paramount it is because it is not limited by the Constitution, or because some immediate and overruling emergency calls for the application of the maxim
solus populi supremo lex.
If the trespasses complained of by the plaintiff were merely those of agents of the state, committed while necessarily engaged in the making of a survey to establish the boundary lines of civil divisions thereof, and which involved no such taking of private property for public use as to bring the plaintiff within the protection of the constitutional provisions embracing that subject, then it is obvious that there was neither occasion nor right for the exercise of the police power, since the inherent governmental power of the state, unrestricted by the Constitution, was ample for that purposeand that assumption would, of course, necessarily compel the concession that the plaintiff’s loss would be
damnum absque injuria.
It seems equally clear, however, that if the acts of the defendants went so far beyond the necessary incidents of a governmental survey as to involve the taking of plaintiff’s private property for an alleged public use, the state is liable if the taking is authorized by its legislative direction, and the trespassers are liable if there is no such authority. This brings us logically to the discussion of the power of eminent domain, and to the assertion that it was exercised against the plaintiff under the statute invoked by the defendants.
The learned Appellate Division, although placing its decision upon the ground that the defendants’ invasion of the plaintiff’s land could be justified under the state’s power of eminent domain, conceded “ that much, of necessity, must be read into the statute authorizing condemnation,” but concluded that
“
in one form or another, if the State through its officers has caused in jury to the plaintiff in the prosecution of
a public work commanded by its legislature, * * * the Court of Claims must be open to him to prove and recover his damage.” I think this position is utterly untenable. It is the settled law of this state that an injury to private property cannot be justified by the plea of a statutory sanction unless the latter is expressly given, or may be.so clearly implied from the powers expressly conferred that the doing of the act which occasioned the injury can fairly be said to be within the legislative contemplation.
(Cogswell
v.
N. Y., N. H. & H. R. R. Co.,
103 N. Y. 10, 21.) Even under the most liberal reading of the statute now under consideration (L. 1902, cli. 473) it is impossible to find in it a single word or sentence indicating that the state proposed to exercise its right of eminent domain, or to make compensation for private property taken or destroyed. The legislative direction to the state engineer and surveyor was to “ locate, establish and permanently mark upon the ground ” the boundary line in dispute, and the sum of forty thousand dollars was appropriated, not to pay for property taken or to liquidate damage inflicted upon property owners, but for the purpose of the act; that is, to pay the necessary expenses of the survey. This is made clear beyond a doubt by a subsequent section of the statute limiting the amount which the state treasurer was authorized to pay on account of the work during the years 1902 and 1903, and providing for the final expenditure in 1904
“
of twelve thousand dollars, or so much thereof as may be necessary for the completion of the work.” Such a statute, if intended to authorize the exercise of thel right of eminent domain, would be clearly unconstitutional, because it makes no provision for compensation to those whose private property is to be taken for a public use. While payment need not precede the taking, the provision for compensation must not only pre-exist, but it must be so definite and certain as to leave nothing open to litigation except the title to the property taken and the amount of damages which the owner may recover.
(Sweet
v.
Rechel,
159 U. S. 380, 398 ;
Sage
v.
City of Brooklyn,
89 N. Y. 189,
195; Matter of Mayor, etc.,
of N. Y.,
99 N. Y. 569, 577;
Brewster
v.
Rogers
Co., 169 N. Y. 73, 80.)
It seems equally clear, also, that if the statute did not direct, and was not intended to authorize the exercise of the power of eminent domain, the defendants can claim no protection under it, and the immunity from liability for which they contend must be sought in some other direction. For this purpose we are referred to the statute of 1903 (Chap. 348), which enacts that, “ For the purpose of making the surveys and performing the work provided for by this act, to the extent deemed necessary by the state engineer for such purpose, stating the purpose and extent thereof, the state engineer and surveyor, and upon his written authority, his assistants, agents, employees and servants, are hereby authorized and empowered to enter in and upon any and all lands in this state to whomsoever belonging and to do and perform any acts or act whatsoever necessary to do and fully complete such work and surveys, subject to liability only for payment of all damages on account of entry upon such lands and ■ acts done thereon.” This statute, if read literally and according to strict grammatical criticism, authorizes the state engineer and his assistants to do certain things, subject to individual liability for damages inflicted by their entry upon any lands. The defendants, and not the state, are to be liable for such damages. But that is a mere technicality, which, in the consideration of fundamental principles, may be passed without further mention.
When we undertake to find in the statute a legislative purpose to subject the state to liability for damages inflicted upon the private owner in the performance of this public work, we perceive more clearly the real and substantial objections to its use by the defendants as a shield against their wrongful acts.
It was enacted in 1903, or something like a year after the commission of the alleged trespasses. To the extent that it may have been designed as a statute authorizing the taking or invasion of private property for the public use, it fails of its purpose, so far as the plaintiff is concerned, because his prop
erty had been invaded before its passage. There is nothing retroactive in its letter, and it could not be retroactive in effect, for, as we have seen, it is one of the cardinal essentials of a statute authorizing the taking of private property for public use that provision for compensation must precede the taking or entry. The theory of respondent’s counsel that the statute of 1903 operated to ratify and confirm the acts of the defendants upon the plaintiff’s lands is untenable for two reasons: 1. If the statute of 1902 was effective to authorize the taking of or entry upon the plaintiff’s lands, there was no need of ratification or confirmation, and in that view the so-called confirmatory statute of 1903 would be just so much waste paper. 2. If the statute of 1902 did not authorize the entry upon or taking of plaintiff’s lands under the state’s power of eminent domain the defendants were naked trespassers just in so far as they transcended, if they did transcend, the general governmental powers which inhere in the state’s right to make surveys and delimit the boundaries of its civil divisions, and in that aspect of the case the unauthorized acts committed by the defendants upon the plaintiff’s lands were wrongful and could be ratified by no one but the plaintiff. The statute of 1903, instead of being an attempted governmental ratification of the acts of ■ a state agency, seems to be nothing more than a legislative admission of the insufficiency of the statute of 1902 to authorize such acts as were committed by the defendants upon the lands of the plaintiff.
Thus we are brought to the consideration of the two real questions upon which the fate of this litigation depends: 1. Whether the defendants’ invasion of the plaintiff’s premises was within the general and inherent power of the state in making a survey for the establishment of the disputed boundary lines of the counties named. 2. Whether the plaintiff’s remedy, if the defendants’ acts were in excess of such governmental power, lies in the Court of Claims in an action against the state, or in a court, of general equity jurisdiction in a suit against the actual wrongdoers.
The power of the state to make surveys for public improve-
merits and to mark the boundaries of its civil divisions is so universally recognized that it may be conceded without discussion. In the case at bar we are not so much concerned about its existence as with its limitations. The existence of the power necessarily implies the right to make it practical and effective. For that purpose the state through its agents may, doubtless, enter upon and temporarily occupy private lands, or even commit acts thereon that are ordinarily classified as technical trespasses, without becoming liable to compensate the injured owner. It must be, however, that this arbitrary power has its limitations, and while these are no more clearly definable than the power itself, they are to be looked for in the special circumstances of each separate case. The statement of a few generalizations taken from learned authors cited by the respondents will serve to mark the angle from which the question should be viewed in the case at bar. “ In the construction of public improvements, as railroads or canals for instance, before it is knowfi that the land will be wanted, preliminary steps, such for instance as surveys, are indispensably necessary. These preliminary steps are in themselves a trespass, and may sometimes, as hy felling trees, work actual injury to the proprietor. On the other hand, if payment be not made before the work is actually begun, then, if it be discontinued or left in imperfect state, the owner might be entirely remediless. In such a conflict of interests the current of decisions seems to tend to establish the rule that the preliminary steps in regard to public works may be taken without any compensation, but that before any definite act be done toward the construction of the improvement, which is in the nature of the assertion of ownership, payment must he made or tendered, or a certain and adequate remedy be provided, and unless this is done in the act authorizing the work, the statute is wholly unconstitutional and void, and any step taken under it is an unauthorized trespass.” (Sedgwick on Construction of Stat.
&
Const. Law, pp. 467, 468.) “It is settled that the legislature may authorize railway companies to enter upon land for the purpose of preliminary surveys with
out making any compensation therefor, doing as little damage as possible, and selecting such seasons of the year as will do least damage to the growing crops.” (Redfield on Railways [5th ed.], p. 258.) “ When a surveyor or engineer is an officer of the state or of the Federal government, or is acting by authority of either, or under powers granted to a corporation by the legislature, he is authorized to enter upon lands and perform his work, and cannot be interfered with, if acting within the scope of his duties. The entry must be for a temporary purpose and be accompanied with no unnecessary damages. Preliminary surveys may he authorized by the state without compensation being previo'
Ay
paid or secured by an owner. This is so even though the Constitution requires the payment of compensation to precede a taking, on the ground that no estate is thereby taken.” (Wait on Law of Operations Preliminary to Construction and Engineering, sec. 353.)
No constitutional principle is violated by a statute which allows private property to be entered upon and temporarily occupied for the purposes of survey and other incip- • ient proceedings with a view of judging and determining whether the public needs require the appropriation or not, and if so what the proper location shall be; and the party acting under this statutory authority would neither be bound to make compensation for the temporary possession, nor be liable to an action of trespass. When, however, the land has been viewed, and a determination arrived at to appropriate it, the .question of compensation is to be considered.” (Cooley’s Const. Lim. [7th ed.] p. 813.) These extracts from the writings of learned commentators upon subjects germane to the question under consideration, clearly indicate that in the prosecution of public works by or under the authority of the state, except under the right of eminent domain or common-law necessity, there is immunity from liability for entry upon private -lands, only to the extent that the entry or occupation is temporary, or the infliction of damage is incidental and incipient or preliminary. If the occupation is to he permanent or the damage is to be substantial, then the state and
those assuming to act under it must invoke those powers under which such things may lawfully be done. The case at bar differs in circumstance, but not in principle, from the illustrations taken from the learned authors above referred to. Here the permanent demarkation of boundary lines between several counties was the permanent work to be done. To that end a preliminary survey was necessary, and that could not be made without entry upon some private lands. It is reasonable to suppose that, to some extent, the blazing of trees, or the felling of an occasional tree, might be regarded as indispensable, and that the ordinary monuments of the surveyor’s profession might have to be established on private land's. All this, and perhaps more, may fairly be considered as comprehended in the legislative direction “ to locate, establish and permanently mark upon the ground ” the disputed boundary lines. In the case at bar the defendants did not stop at these temporary, preliminary, incipient and incidental things which, as we have seen, may be done without making compensation or incurring liability, but they proceeded to practically appropriate a strip of plaintiff’s land, three and one-half miles in length and from five to twenty-five feet in width, not temporarily, but for the purpose of permanently establishing a base line, from which the boundary line could be the more readily and permanently located. This base line consisted of a “ slash ” in the woods covering the whole of the territory above mentioned, that it will take eighty years of timber growth to repair. And this was done, not as a necessary and essential part of the survey, or upon the line thereof, but wholly upon the plaintiff’s land, and purely because, in the judgment of the state engineer, such a “slash” would make a more permanent auxiliary or sighting line to the true boundary than any other method that could have been employed. Wfe must assume, for the referee has found, that the method employed was “ the one best adapted to the proper performance of the work prescribed,” and was designed to secure the most certain and permanent results. For the purposes of illustration let us suppose that the most approved and up-to-date method of survey
ing for boundary lines required the building of a stone wall on private property from 5 to 35 feet in width for a length of 3j- miles; or that such a structure, or a “ slash ” like the one described in the record should occupy all the land of, a-private owner; or that the owner’s residence, which happened to be where the base line was desired to be established, was razed to the ground and the materials scattered over the ground. Would any such entry and occupation by the agents of the state be justifiable under the state’s inherent power to survey and mark boundary lines
t
I think not. And if not, then how can the acts herein complained of be justified ? The difference between the illustrations and the fact is one of degree and not of kind. It is to be emphasized again, moreover, that the “ slash ” cut upon plaintiff’s premises was not designed to mark the boundary line or to establish a permanent monument upon it, but to maintain an independent base line for convenient future reference. This was not, in my judgment, such an establishment and permanent marking of the boundary line upon the ground as was contemplated by the statute.
We deem it unnecessary to discuss at length the proposition that such an entry' and occupation as is conceded to have been made upon the plaintiff’s land is a taking of property within the meaning of our State and Federal Constitutions. “ Depriving an owner of property of one of its essential attributes is depriving him of his property within the constitutional provisions.”
(People ex rel. Manh. S. Instn.
v.
Otis,
90 N. Y. 48-52.) “When a law annihilates the value of property and strips it of its attributes, by which alone it is distinguished as property, the owner is deprived of it according to the plainest interpretation, and certainly within the spirit of a constitutional provision intended expressly to shield private rights from the exercise of arbitrary power.” (
Wynehamer
v.
People,
13 N. Y. 378.) “Whenever a law deprives the owner of the beneficial use and free enjoyment of his property, or imposes restraints upon such use and enjoyment, that materially affect its value, without legal" process or com
pensation, it deprives him of his property within the meaning of the Constitution.”
(Forster
v.
Scott,
136 N. Y. 577.) “ It would be a very curious and unsatisfactory result if in construing a provision of constitutional law, always understood to have been adopted for protection and security to the rights of the individual as against government, and which has received the commendation of jurists, statesmen and commentators as placing the just principles of the common law on that subject beyond the power of ordinary legislation to change or control them, it shall be held that if the government refrained from the absolute conversion of real property to the uses of the public, it can destroy its value entirely; can inflict irreparable and permanent injury to any extent; can, in effect, subject it to total destruction without making any compensation, because, in the narrowest sense of that word, it is not taken for public use.”
(Pumpelly
v.
Green Bay Co.,
13 Wall. 166.)
From the foregoing authorities and observations I summarize the following conclusions: That the state had no authority to do the acts complained of by the plaintiff. It did not assume to act under its power of eminent domain, or if it did, the attempted exercise of that power was unconstitutional because the statute relied upon to authorize it made no provision for compensation for the taking of private property. The supplementary statute, which, by a stretch of language, may be construed as authorizing such compensation, is unavailing because it was not passed until after the commission of the acts described, and it is fundamental that, although payment need not precede the taking, the provision for compensation is an indispensable precedent. Since the state cannot justify the invasion of the plaintiff’s property for the purposes described under its police power, or the common-law right of necessity, or the inherent power to make surveys of its civil divisions, it follows that the acts of the defendants committed in excess of the last-mentioned power were unauthorized trespasses, for which the plaintiff is entitled to some relief, and for which some one is liable.
< What is the plaintiff’s remedy ? It is argued by the learned . attorney-general that the statute passed in 1904, and conferring upon the Court of Claims jurisdiction “to hear, audit and determine claims for damages caused by the state engineer and surveyor, and his assistants acting under his direction,” in making the surveys authorized by the statute of 1902, clearly relegates the plaintiff to the Court of Claims as the only forum in which he may present his claim, and as clearly deprives him of any other remedy either against the state or against the defendants. The difficulty with this argument is to be found in a subsequent portion of the statute of 1904, not quoted by respondents’ counsel. The concluding paragraph of that statute is: “ Nothing in this act contained shall be construed as creating or acknowledging any liability on the part of the state.” Thus falls the contention that either by the exercise of the right of eminent domain, or by
ex post facto
ratification, the state has assumed and recognized its obligation to pay the plaintiff his damages. The act of 1904 did not create a claim in favor of the plaintiff against the state, any more than section 264 of the Code of Civil Procedure, defining the general jurisdiction of the Court of Claims, undertakes to create claims against the state. In the statute of 1904 the question of the state’s liability is distinctly left open.
Since the state cannot be held liable upon any of the theories already discussed, it remains to be ascertained whether it is generally liable for the torts of its officers or agents, or only in special instances expressly created by law-. The general rule, as I understand it, is very clearly and forcibly stated in
Poindexter
v.
Greenhow
(114 U. S. 270, 290) in the following language : “ The State itself is an ideal person, intangible, invisible, immutable. The government is an agent, and, within the sphere of the agency, a perfect representative; but outside of that it is a lawless usurpation. * * * It is also true, in respect to the State itself, that whatever -wrong is attempted in its name is imputable to its government and not to the State, for, as it can speak and act only by law, whatever it does say and do must be lawful. That which, therefore, is
unlawful because made so by the supreme law, the Constitution of the United States, is not the word or deed of the State, but is the mere wrong and trespass of those individual persons who falsely speak and act in its name.” Ho language could more aptly depict the situation disclosed by this record. The state, through its Constitution, has ordained that no man’s property shall be taken without due process of law and just compensation. The state engineer, assuming to act for the state, and doubtless believing himself authorized to act for it, has taken and destroyed plaintiff’s property without su,ch process or compensation. This being contrary to law, it cannot be the act of the state, and, therefore, must be “the mere wrong and trespass of those individuals ” who. mistakenly spoke and acted in its name.
The cases which are sometimes referred to as exceptions to this general rule are not exceptions at all, for they do not fall within the rule. When a state, by express enactment of statutes, assumes responsibility for such torts of its officers and agents as are not affected or controlled by the fundamental law, it makes, a new rule for itself. Instances of that kind are to be found in
Sipple
v.
State of N. Y.
(99 N. Y. 284), where the legislature enacted a statute making the state liable for the negligent operation of its canal locks, upon proof that would create a legal liability against an individual or a private corporation, and in
Woodman
v.
State of N. Y.
(127 N. Y. 397), where negligence in the maintenance of a defective canal bridge was attributed to the state under a similar statute. There are still other classes of cases in which the state has been held liable for the apparent torts of its agents, but in reality for its own neglect of duties assumed under mandatory or permissive statutes, as in
Ballou
v.
State of N. Y.
(111 N. Y. 500), where the state built a sewer which was permitted to overflow on the plaintiff’s premises, and in
Mayor, etc. of N. Y.
v.
Furze
(3 Hill, 612) where the municipality, which had been empowered to build a sewer, was held liable for its neglect to properly maintain it.
Thus, by the process of exclusion, we come to the final
question whether the defendants can be held liable as individuals. If I have thus far reasoned correctly, such liability seems to follow as. a logical necessity. The trespasses committed upon the plaintiff’s land were not the acts of the state, but the unauthorized and unlawful wrongs of the defendants who, although the agents of the state within their sphere of duty, were naked usurpers in assuming to do that which the state could neither do nor authorize to be done, except in the exercise of its power of eminent domain; and that power, as we have seen, was either not attempted to be exercised at all, or if it was, the effort was fruitless because absolutely void. If this assumption is correct, it matters not whether the operations of the defendants upon the plaintiff’s land were characterized by reasonable care or gross negligence. The fact that they were unauthorized is sufficient to confer upon the plaintiff a right of action against the defendants.
(St. Peter
v. Denison, 58 N. Y. 416.) The vital principle in all such cases is that the defendants, though professing to act as officers of the state, are, threatening a violation of the personal or property rights of the complainant, for which they are personally and individually liable. This principle was plainly stated in the opinion of the court in
Poindexter
v.
Greenhow (supra),
as follows:
“
The case then of the plaintiff below is reduced to this: He had paid the tax demanded of him by a lawful tender. The defendant had no authority of law thereafter to enforce other .payment by seizing his property.
In doing so he ceased to be an officer of the law and became a private wrongdoer.
It is the simple case in which the defendant, a natural private person, has unlawfully, with force and arms, seized, taken and detained the personal property of another.”
(In re Ayers,
123 U. S. 500, 501.) The principle thus clearly enunciated has been recognized in this state in
Adsit
v.
Brady
(4 Hill, 631), where a superintendent of repairs on a state canal was personally held liable for his failure to remove an obstruction to navigation, in consequence of which a canal boat was injured; and in
Robinson
v.
Chamberlain
(34 N. Y. 389), where a contractor, who had
been invested with and assumed the powers of a state officer, neglected to properly maintain a lock gate within the area of his contract, causing damage to a boat and its furniture; and in
People
v.
Canal Board
(55 N. Y. 391), where the whole argument in the opinion is predicated upon the proposition “ That public bodies and public officers may be restrained by injunction from proceeding in violation of law to the prejudice of the public, or to the injury of individual rights, cannot be questioned.”
In the case at bar the complaint and the proofs establish a cause of action against individuals who have mistakenly and unlawfully assumed to act under color of law, so that in its simplest analysis the ultimate question is, whether the plaintiff could maintain this form of action against the defendants if they had professed to enter his premises simply as individuals. As that question can have but one answer, we conclude that the judgment of the courts below should be reversed and a new trial had, with costs to abide the event.